Puerto Rico is a Territory of the United States

Posted July 3, 2011

The legal foundation of Puerto Rico’s status within the United States can be found in Article IV, Section 3, Clause 2 of the United States Constitution, commonly known as the “Territorial Clause” — “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Constitution of the United States of America, Article IV, Section 3, Clause 2

Report by the President’s Task Force on Puerto Rico’s Status, December, 2007, page 5-6. When “commonwealth” is used to describe the substantial political autonomy enjoyed by Puerto Rico, the term appropriately captures Puerto Rico’s special relationship with the United States. The commonwealth system does not, however, describe a legal status different from Puerto Rico’s constitutional status as a “territory” subject to congress’s plenary authority under the Territory clause “to dispose of and make all needful Rules and Regulations respecting the Territory … belonging to the united States.” Congress may continue the current commonwealth system indefinitely, but it necessarily retains the constitutional authority to revise or revoke the powers of self-government currently exercised by the government of Puerto Rico. Thus, while the commonwealth of Puerto Rico enjoys significant political autonomy, it is important to recognize that, as long as Puerto Rico remains a territory, its system is subject to revision by congress…

[T]he department of Justice concluded in 1959 that Puerto Rico remained a territory, and as noted above, the Supreme court, while recognizing that Puerto Rico exercises substantial political autonomy under the current commonwealth system, has held that Puerto Rico remains fully subject to congressional authority under the Territory clause. See Harris, 446 U.S. at 651-52.

Report by the President’s Task Force on Puerto Rico’s Status, December, 2007, page 7. At present, Puerto Rico is an “unincorporated” territory, subject only to the most fundamental provisions of the constitution. One notable consequence of this status is that the constitution’s Tax uniformity clause is not applicable to Puerto Rico, allowing congress to exempt the Puerto Rican people from most federal income tax laws and to provide them with other tax preferences not provided to residents of the States. These tax preferences would become impermissible under the constitution if Puerto Rico were “incorporated” into the country as part of the process of being admitted as a State.

Report by The President’s Task Force on Puerto Rico’s Status, (President George W. Bush) December 2007, p. 5. When “Commonwealth” is used to describe the substantial political autonomy enjoyed by Puerto Rico, the term appropriately captures Puerto Rico’s special relationship with the United States. The commonwealth system does not, however, describe a legal status different from Puerto Rico’s constitutional status as a “territory” subject to congress’s plenary authority under the Territory Clause “to dispose of and make all needful Rules and Regulations respecting the Territory… belonging to the United States.” Congress may continue the current commonwealth system indefinitely, but it necessarily retains the constitutional authority to revise or revoke the powers of self-government currently exercised by the government of Puerto Rico. Thus, while the commonwealth of Puerto Rico enjoys significant political autonomy, it is important to recognize that, as long as Puerto Rico remains a territory, its system is subject to revision by Congress.

C. Kevin Marshall, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Testimony before the Committee of Energy and Natural Resources, November 16, 2006. The Task Force issued its [2005] report last December and concluded that there were three general options under the Constitution for Puerto Rico’s status: (1) continue Puerto Rico’s current status as a largely self-governing territory of the United States; (2) admit Puerto Rico as a State, on an equal footing with the existing 50 States; or (3) make Puerto Rico independent of the United States.

Secretary of State Colin Powell Memorandum to Belize Embassy concerning “possible Puerto Rican Requests for Recognition” May 16, 2003. The Department is aware that Puerto Rican government officials have approached a number of countries . . . seeking treatment normally only accorded to a sovereign state.

Puerto Rico is an unincorporated territory of the United States with commonwealth status. The U.S. federal government has full responsibility for the conduct of foreign relations of all areas subject to United States jurisdiction, including all U.S. states, territories, and possessions. Accordingly, the Department reviews any proposed participation by a U.S. territory or possession in international bodies, or signing of documents (including agreements) with other nations [.]

Robert Raben, Assistant Attorney General to President William Jefferson Clinton, letter to Sen. Frank H. Murkowski, January 18, 2001, pp. 5, 14. [T]he Constitution recognizes only a limited number of options for governance of an area. . . . The terms of the Constitution do not contemplate an option other than sovereign independence, statehood, or territorial status. Although Puerto Rico currently possesses significant autonomy and powers of self-government in local matters pursuant to the Puerto Rican Federal Relations Act, that statute did not take Puerto Rico outside the ambit of the Territory Clause.

[T]he legislative powers of a non-State region under the sovereignty of the United States are entirely vested in Congress.

William M. Treanor, Deputy Assistant Attorney General, Office of Legal Counsel, United States Department of Justice, Testimony before the House Natural Resources Committee, October 4, 2000, p. 17. The terms of the Constitution do not contemplate an option other than sovereign nationhood, Statehood, or territorial status. Currently, despite the great degree of autonomy and self-government in local matters that Puerto Rico enjoys as a commonwealth, it is from a constitutional point of view governed under the Territories Clause. The Supreme Court’s 1980 decision in Harris v. Rosario makes that clear, and that is also the longstanding view of the Department of Justice.

Department of State Legal Brief in Alberto Lozada Colon v. State, March 19, 1999. [T]he status of Puerto Rico since the creation of the Commonwealth system is that Puerto Rico’s status remains the same. Puerto Rico remains a territory subject to the plenary power of Congress. Cases also indicate that Puerto Rico’s status in relation to the United States remained the same following the establishment of the Commonwealth system. In fact, the House Report accompanying Public Law 600 specifically states that the bill “would not change Puerto Rico’s fundamental political, social, and economic relationship to the United States.”

President George H.W. Bush, Memorandum of November 30, 1992, Federal Register, Vol. 57, No. 232. Puerto Rico is a self-governing territory of the United States whose residents have been United States citizens since 1917 and have fought valorously in five wars in the defense of our Nation and the liberty of others. . . . As long as Puerto Rico is a territory . . . the will of its people regarding their political status should be ascertained periodically[.]

Harry H. Flickinger, Assistant Attorney General for Administration, U.S. Department of Justice, Letter to the General Accounting Office, April 12, 1991, as contained in House Report 104-713[T]here cannot be, as far as any branch or agency of the Federal Government is concerned, any doubt as to the applicability of the Territory Clause to Puerto Rico.

The argument that the Territory clause does not apply is tantamount to a claim that there is no constitutional source for federal lawmaking in Puerto Rico and the Northern Mariana, and that these entities are basically independent sovereigns.

W. Lee Rawls, Assistant Attorney General, Letter to Senator Malcolm Wallop (R-WY), February 22, 1991. As a matter of law, Puerto Rico’s present political status is that of an unincorporated territory of the United States, subject to the sovereignty of the United States and congress’ plenary governing power under the Territory Clause of the Constitution. U.S. Const. Art. IV, § 3, cl. 2. Congress has allowed the people of Puerto Rico to organize a local government pursuant to a constitution of its own adoption. This does not, however, alter the fact that Puerto Rico remains subject to Congress’ plenary governing power under the Territory Clause.

Attorney General Richard Thornburgh, Attorney General, Testimony before the Senate Energy Committee, February 7, 1991, pp. 190 and 210. Under the Territory Clause of the Constitution, Article 4, Section 3, Clause 2, an area within the sovereignty of the United States that is not included in a State must necessarily be governed by or under the authority of Congress.

We consider it imperative that it be made clear beyond peradventure that the Commonwealth is and must remain under the sovereignty of the United States. This is necessary in order to avoid the continuation of the uncertainties and controversies that have plagued the existing commonwealth relationship.

Memorandum by the Government of the United States of America to the United Nations Concerning the Cessation of Transmission of Information under Article 73(e) of the Charter with Regard to the Commonwealth of Puerto Rico, 1953, section 21. The term “commonwealth” was adopted by Puerto Rico as the official English designation of the body politic created by the Constitution (the official Spanish title is “estado libre asociado”), to define the status of that body as “a state which is free of superior authority in the management of its own local affairs but which is linked to the United States of America and hence is a part of its political system in a manner compatible with its Federal structure”, and which “does not have an independent and separate existence” (Resolution No. 22 of the Constitutional convention). By the various actions taken by the Congress and the people of Puerto Rico, Congress has agreed that Puerto Rico shall have, under that constitution, freedom from control or interference by the congress in respect of internal government and administration, subject only to compliance with applicable provisions of the Federal Constitution, the Puerto Rican Federal Relations Act and the acts of Congress authorizing and approving the Constitution, as may be interpreted by judicial decision.(Emphasis added)

Message from Harry S. Truman, President of the United States,Transmitting the constitution of the Commonwealth of Puerto Rico, Adopted by the People of Puerto Rico on March 3, 1952. Through the act of July 3, 1950, providing for the establishment of a constitutional government in Puerto Rico, the United States gives evidence once more of the adherence to the principle of self-determination and its devotion to the ideals of freedom and democracy. The people of Puerto Rico have accepted the law as enacted by the Congress. They have complied with its requirements and have submitted their constitution for the approval of the Congress. With its approval, full authority and responsibility for local self-government will be vested in the people of Puerto Rico. (Emphasis added)

Oscar L. Chapman, Secretary of the Interior, Letter in support of PL 81-600, authorizing the Puerto Rican “Commonwealth” constitution, May 19, 1950. It is important at the outset to avoid any misunderstanding as to the nature and general scope of the proposed legislation. . . The bill merely authorizes the people of Puerto Rico to adopt their own constitution and to organize a local government [.] The bill under consideration would not change Puerto Rico’s political, social, and economic relationship to the United States.

Supreme Court Statements

Puerto Rico v. Sanchez Valle, 136 S.Ct. 136 S.Ct 1863 (2016).
Puerto Rico became a territory of the United States in 1898, as a result of the Spanish-American War. The treaty concluding that conflict ceded the island, then a Spanish colony, to the United States, and tasked Congress with determining “[t]he civil rights and political status” of its inhabitants. Treaty of Paris, Art. 9, Dec. 10, 1898, 30 Stat. 1759. In the ensuing hundred-plus years, the United States and Puerto Rico have forged a unique political relationship, built on the island’s evolution into a constitutional democracy exercising local self-rule. Acting pursuant to the U. S. Constitution’s Territory Clause, Congress initially established a “civil government” for Puerto Rico possessing significant authority over internal affairs. Organic Act of 1900, ch. 191, 31 Stat. 77; see U. S. Const., Art. IV, §3, cl. 2 (granting Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”).

Harris v. Rosario,446 U.S. 651, 651-52 (1980).Congress, which is empowered under the Territory Clause of the constitution, U.S. const., Art. IV, 3, cl.2, to “make all needful Rules and Regulations respecting the territory . . . belonging to the United States,” may treat Puerto Rico differently from States so long as there is a rational basis for its actions.

Torres v. Puerto Rico, 442 U.S. 465, 470-473 (1979). Puerto Rico has no sovereign authority to control entry into its territory; as with all international ports of entry, border and customs control for Puerto Rico is conducted by federal officers[.]

Congress may make constitutional provisions applicable to territories in which they would not otherwise be controlling. Congress generally has left to this Court the questions of what constitutional guarantees apply to Puerto Rico. However, because the limitation on the application of the Constitution in unincorporated territories is based in part on the need to preserve Congress’ ability to govern such possessions, and may be overruled by Congress, a legislative determination that a constitutional provision practically and beneficially may be implemented in a territory is entitled to great weight.

Examining Board of Engineers, Architects, and Surveyors v. Flores de Otero, 426 U.S. 572, 587 n. 16 and 590 (1976). The powers vested in Congress by Const., Art. IV, Sec. 3, cl. 2, to govern Territories are broad. And in the case of Puerto Rico, the Treaty of Paris specifically provided: “The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress.”

Congress appears to have left the question of the personal rights to be accorded to the inhabitants of Puerto Rico to orderly development by [the Supreme Court] and to whatever further provision Congress itself might make for them.

Puerto Rico v. Shell Co., , 426 U.S. 572, 259 (1937). “[W]e hold, accordingly, that the word ‘territory’ was used in its most comprehensive sense [in Section 3 of the Sherman Act], as embracing all organized territories, whether incorporated into the United States or not, including Puerto Rico.

Balzac v. Porto Rico, 258 U.S. 298, 304-09 (1922). [It is] clearly settled that [the right to trial by jury does] not apply to territory belonging to the United States which has not been incorporated into the Union. It was further settled in Downes v. Bidwell and confirmed by Dorr v. United States that neither the Philippines nor Puerto Rico was territory which had been incorporated in the Union or become a part of the United States, as distinguished from merely belonging to it. . . . The Porto Rican can not insist upon the right of trial by jury, except as his own representatives in his legislature shall confer it on him.

New York ex rel. Kopel v. Bingham, 211 U.S. 468, 476 (1909). It may be justly asserted that Porto Rico is a completely organized Territory, although not a Territory incorporated into the United States, and that there is no reason why Porto Rico should not be held to be such a Territory[.]

Gonzales v. Williams, 192 U.S. 1, 16 (1904). [Appellant, a Puerto Rican native and resident born before the signing of the Treaty of Paris who was traveling to New York] was not a passenger from a foreign port, and was a passenger “from territory or other place” subject to the jurisdiction of the United States.

De Lima v. Bidwell, 182 U.S. 1, 200 (1901). We are therefore of [the] opinion that at the time these duties were levied [after the signing of the Treaty of Paris] Porto Rico was not a foreign country within the meaning of the tariff laws but a territory of the United States [.]

Downes v. Bidwell, 182 U.S. 244, 287 (1901). We are therefore of the opinion that the Island of Puerto Rico is a territory appurtenant and belonging to the United States [.]

Huus v. N.Y. & Porto Rico Steamship Co., 182 U.S. 392, 396-97 (1901). [T]rade with that island [Puerto Rico] is properly a part of the domestic trade of the country since the treaty of annexation [.]

Nat. Bank v. Yankton County, 101 U.S. 129, 133 (1879). All territory within the jurisdiction of the United States not included in any State must necessarily be governed by or under the authority of Congress.

Sere v. Pitot, 10 U.S. 332, 336-37 (1810). The power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory. Could this position be contested, the constitution of the United States declares that “congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

U.S. v. Lopez Andino, 831 F.2d 1164, 1173 (1st Cir. 1987) (Torruella, J. concurring). Although some events subsequent to the passage of P.L. 600 have tended to overlook and obscure the facts, the legislative history of the Act leaves no doubt that even though its passage signaled the grant of internal self-government to Puerto Rico, no change was intended by Congress or Puerto Rico authorities in the territory’s constitutional status or in Congress’ continuing plenary power over Puerto Rico pursuant to the Territory Clause of the Constitution. (emphasis in original)

In the hearings which culminated in the passage of P.L. 600, Antonio Fernos Isern, Puerto Rico’s Resident Commissioner before Congress, expressly stated that the bill “would not change the status of the island of Puerto Rico relative to the United States. . . . It would not alter the powers of sovereignty over Puerto Rico under the terms of the Treaty of Paris.” He and Luis Munoz Marin, Puerto Rico’s senior statesman and driving force in seeking this grant of local autonomy, also expressed this interpretation of P.L. 600 by stating their understanding that Congress would retain authority to revoke or modify Puerto Rico’s Constitution. In accord with this view, the Secretary of the Interior, the Senate report accompanying the Senate version of P.L. 600, S. 3336, and the Senators who sponsored S. 3336 all explicitly stated that the new bill would not affect the underlying relationship between Puerto Rico and the United States. Furthermore, the report accompanying the draft of the bill which became P.L. 600 also indicated that the measure did not change Puerto Rico’s fundamental relationship to the United States.

Second Circuit

Romeu v. Cohen,265 F.3d 118, 122 (2d Cir. 2001). For voting rights . . . the status of a U.S. citizen living in the U.S. territory of Puerto Rico is not identical to that of a U.S. citizen living in a State.

Third Circuit

Americana of Puerto Rico, Inc. v. Kaplus,368 F.2d 431, 436 (3d Cir. 1966). We believe we have demonstrated that Puerto Rico is a ‘Territory’ within the purview of Article IV, Section 3.

United States v. Sanchez, 992 F.2d 1143, 1151 (11th Cir. 1993). Puerto Rico is still constitutionally a territory, and not a separate sovereign.

United States District Court for the District of Puerto Rico

Puerto Rico Public Housing Administration v. United States Dept. of Housing and Urban Dev., 59 F. Supp. 2d 310, 324 n.16 (D.P.R. 1999). Even though Puerto Rico is not a state, as a United States territory it is bound by the Fourteenth Amendment.

Popular Democratic Party v. Puerto Rico, 24 F. Supp. 2d 184, 193 (D.P.R. 1998). Juridically speaking, Puerto Rico continues to be an unincorporated territory of the United States, meaning that the United States citizens residing in the island only enjoy fundamental constitutional rights. Balzac v. Porto Rico, the legal precedent for this doctrine, continues to be in effect.

New Progressive Party v. Hernandez Colon, 779 F. Supp. 646, 661 (D.P.R. 1991). It should be remembered that Puerto Rico has been since 1901, and continues to be, an unincorporated territory.

Rep. Stephanie Murphy (D-FL), House Floor Statement before House Session, March 2, 2017, Congressional Record, page H1468. Puerto Rico is going through difficult times, and I am determined to help the Island get back on its feet. The main reason Puerto Rico is struggling is because, as a territory, it is treated unequally under Federal law. I support equal treatment for Puerto Rico because I oppose second class citizenship. Ultimately, I believe Puerto Rico should discard its territory status and become a State or a sovereign nation. The choice lies with the people of Puerto Rico. However, my personal hope is that they will choose statehood so that they have full voting rights and full equality. Puerto Ricans have earned the right to become first class citizens of the Nation they have served with honor.

Congressional Task Force on Economic Growth in Puerto Rico, December 20, 2016. Puerto Rico—along with American Samoa, Guam, the Northern Mariana Islands and the U.S.Virgin Islands—is an unincorporated territory of the United States. As a territory, Puerto Rico is subject to Congress’s plenary powers under the Territory Clause of the United States Constitution. The U.S. Supreme Court has held that, so long as Congress does not abridge the fundamental rights of individuals living in the territories, Congress can enact laws that treat the territories differently than the states if there is any rational basis for the differential treatment. Puerto Rico and the other territories are treated differently than the states under a variety of federal programs.

Sen. Bob Menendez (D-NJ), Senate Floor Statement before Senate Session, June 28, 2016, Congressional Record, page S4617 Not only does this legislation remain silent on so many important issues, it actually exacerbates the colonial status and second-class citizenship view that some Members of Congress seem to have of the 3.5 million Americans who call Puerto Rico home. I don’t. That is why I am on the floor trying to fight for their rights. Unfortunately, under their common-law status, they don’t have a voting representative in the House of Representatives, they don’t have a voting representative in the U.S. Senate.

Congressional Research Service (CRS), Political Status of Puerto Rico: Options for Congress, Report Number RL32933, May 29, 2008, pp. 8 – 10 and 18. Puerto Rico remains a territory of the United States, subject to congressional jurisdiction under the Territorial Clause of the U.S. Constitution.

The [Puerto Rican] constitution of 1952 modified aspects of civil government for the islands; but neither it nor the related public laws approved by Congress in 1950 and 1952 changed the fundamental relationship between Puerto Rico and the United States. That relationship is determined by the Territorial Clause of the U.S. Constitution.

Although the constitution of 1952 provides for self-government by Puerto Ricans, Congress ceded none of its own plenary authority over the islands. From time to time Congress has reasserted that authority by enacting legislation pertinent to local matters. For example, Congress amended FRA [Federal Relations Act, which governs the relationship between Puerto Rico and the rest of the U.S.] provisions dealing with local urban development and slum clearance authority.

At the beginning of the 20th century, the Supreme Court issued a series of decisions generally referred to as the Insular Cases. In them, the Court declared that territories are not integral parts of the United States, but are possessions, and that certain fundamental rights, but not all constitutional rights, extend to residents of the territories. In general, analysts and legal practitioners agree with this contention. . . . [Some people] argue that in these cases, the justices concluded that Puerto Rico may exercise certain authority in a fashion comparable to that of the states. Such decisions, however, do not alter the basic relationship of Puerto Rico to the United States as defined under the Territorial Clause of the U.S. Constitution.

General Accounting Office, U.S. Insular Areas: Application of the U.S. Constitution, November 1997, Page 1. More than 4 million U.S. citizens and nationals live in insular areas [defined as “all territories over which the U.S. exercises sovereignty,” including Puerto Rico] under the jurisdiction of the United States. The Territorial Clause of the Constitution authorizes the Congress to “make all needful Rules and Regulations respecting the Territory or other Property” of the United States. Relying on the Territorial Clause, the Congress has enacted legislation making some provisions of the Constitution explicitly applicable in the insular areas.

I can only watch as my colleagues cast Floor votes on bills affecting every aspect of life on the island. I depend on the good will of Senators elected to protect the interest of their constituents, not mine. I request assistance from a President who is not required to earn a vote in Puerto Rico.

To expect a Presidential Administration to feel the same obligation to support Puerto Rico as it does the states is to substitute hope for experience. The failure of the current Administration to send the witness to testify today is a sad reminder of this point.

Moreover, territory status gives the Federal Government license to discriminate against Puerto Rico. The island is treated unfairly under numerous Federal laws including most safety net programs.

There is consensus that territory status is the root cause of the economic problems that have persisted in Puerto Rico for at least 4 decades. The best evidence that the status quo has failed is this, in the brief period from 2004 to 2012, Puerto Rico’s population decreased by 4.2 percent with hundreds of thousands of residents leaving for the states in search of improved quality of life.

Committee on Natural Resources Report, Puerto Rico Democracy Act of 2007 (H.R. 900), Report No. 110-597, April 22, 2008, pp. 4-7. [A]pproval of the local constitution did not define a new political status for the territory. . . . [b]ut the 1950-52 process was noteworthy because it marked the first time that a territory was authorized to draft a constitution without being readied for statehood or nationhood.

Because Puerto Rico, by virtue of its status as a territory, was not able to choose, on its own, to become an independent nation, a sovereign nation-state in free association with the United States, or a state, its constitution convention resolved that the local government would be called “the Commonwealth” in English.

The term “commonwealth” does not denote a particular political status. The term is used in the formal names of four U.S. States (Massachusetts, Pennsylvania, Virginia, and Kentucky) and another jurisdiction subject to congressional authority regarding territories (the Northern Mariana Islands). Although “commonwealth” does not signify status in the way that the terms “State,” “nation,” and Territory” do, Puerto Rico is often referred to as a “commonwealth” and said to have “commonwealth status.” Further, “commonwealth” is also sometimes used as shorthand to refer to the governing arrangement between the United States and Puerto Rico. Finally, as if these different usages of the word were not confusing enough, “commonwealth” is used to refer to the PDP’s enhanced autonomy proposals.

The confusion over the meaning and significance of the term “commonwealth” has been a major factor contributing to Puerto Ricans not determining their preference regarding the Island’s future political status. (The confusion has also hampered congressional action on this issue.) An aspect of the question in Puerto Rico (although not in the federal government) is whether Puerto Rico is still a territory. Puerto Rican leaders do not want Puerto Rico to be a territory. Use of the word “commonwealth” obscures the issue for many Puerto Ricans, who ask: Is “Commonwealth” a territory status or something different? Does it refer to the status quo or to the PDP’s enhanced autonomy proposal?

In large measure, the confusion is one of semantics. Whether Puerto Rico is called a “commonwealth” or a “territory,” the important issue is the extent of U.S. and Puerto Rican authority. Like other territories, Puerto Rico exercises authority over local government matters that is similar to the authority that states possess, but unlike states, territories do not have a zone of reserved sovereignty that is beyond the reach of Congress in the latter’s exercise of its territorial powers. Thus, the Constitution’s Territorial Clause continues to apply with respect to Puerto Rico, as has been determined by the Supreme Court. See, e.g., Harris v. Rosario, 446 U.S. 651 (1980). The same conclusion has also been reached by the Departments of Justice and State, the Government Accountability office, the Congressional Research Service, and both this Committee and its Senate counterpart.

The issue of whether Puerto Rico is more properly called a “commonwealth” or a “territory,” like the issue of Congressional authority to alter the current allocation of power between the federal and local governments, both obscures and distracts from the real issue: namely, that Puerto Ricans lack nearly all aspects of voting representation in the federal government that enacts and enforces their national laws.

After the insular constitution took effect in 1952, leaders of the PDP began to claim that Puerto Rico was no longer a territory, congressional authority regarding the Island had been permanently limited, and Congress could not change the federal-territorial governing arrangement or policies encompassed by it. These claims were made despite the fact that leaders of the PDP had agreed with federal officials that the opposite was true when the arrangement was being established, and notwithstanding the fact that the ‘compact’ provided only for the adoption of a local constitution and the continuation of provisions of federal law regarding the Island without placing any limits on federal authority. In essence, the argument of the PDP has been that the governing arrangement cannot be unilaterally changed because it was mutually established and this permanently limits federal territory governing authority. A simplified version of the argument is that the arrangement cannot be changed by Congress because it was called ‘a compact.’

These ‘compact’ arguments are not supported by the history of the authorization and approval of the federal-territorial arrangement. These arguments are likewise undermined by the federal modifications that have been made to the arrangement since its establishment. For example, The Puerto Rican Federal Relations Act provided that all federal taxes collected on Puerto Rican products would be granted to Puerto Rico. Subsequent statutes have limited the covered products to just one–rum–and authorized the federal government to retain portions of the taxes in the U.S. Treasury for other federal purposes. To cite another example: although the local constitution prohibits capital punishment, subsequently-enacted federal laws have applied capital punishment in Puerto Rico, thereby overriding the prohibition in the local constitution and belying the claim that mutual consent is required for changes to be made to the federal-territorial governing arrangement.

In support of their claim, PDP officials have cited statements made by two U.S. representatives to the United Nations during a 1953 debate. The debate concerned Resolution 748, which then-Governor Munoz prevailed upon the U.N. General Assembly to pass. The U.N. Charter requires a member nation that exercises sovereignty over a ‘non-self-governing territory’ to submit an annual report regarding that territory. Resolution 748 called for Puerto Rico to be removed from the list of non-self-governing territories. The United States was happy to be relieved of its reporting responsibility (and thus supported the Resolution), but it declined to accede to Munoz’s request that the United States declare that Puerto Rico was no longer a U.S. territory. When confronted with the claims of other member nations that Puerto Rico was not in fact self-governing at the national government level, however, the two U.S. representatives verbally endorsed the PDP’s claims that the ‘compact’ could not be unilaterally amended. Statements by diplomats do not override the Constitution and federal laws, and, in any event, the U.S.’s written submission to the U.N. justifying Resolution 748 was more carefully worded. The written submission emphasized Puerto Rico’s local self-government but did not state that Puerto Rico was no longer a territory exempt from federal authority, nor state that the compact could not be unilaterally changed by the United States. The written submission also explained that Puerto Rico’s local self-government was subject to the U.S. Constitution and federal laws.

[N]otwithstanding the oral statements made during debate over Resolution 748, the Supreme Court has held that the Territorial Clause continues to apply to Puerto Rico.

Senator Jeff Bingaman (D-NM), Opening Statement before the Senate Energy Committee, November 15, 2006, p. 2. [The 2005 President’s Task Force Report on Puerto Rico’s Status] has reaffirmed legal positions which seem to me well founded and that were provided to the committee several years ago by the Clinton administration. [T]wo of those findings in particular I would allude to, the current relationship with Puerto Rico is based on the territorial clause and the second, that the mutual consent provisions in the new commonwealth proposal cannot be accommodated under the U.S. Constitution.

Senator Mel Martinez (R-FL), Opening Statement before the Senate Energy Committee, November 15, 2006, p. 3. [F]irst and foremost, we should start by clarifying one point: Puerto Rico is undoubtedly a territory of the United States. Puerto Rico is subject to the Territorial Clause of the U.S. constitution and, therefore, a territory of the United States since 1898. That has not changed in the last 108 years.

Federal authorities including GAO, CRS, DOJ, State, and the Supreme Court, the U.S. House of Representatives and successive U.S. Presidents, including the legislative history of Law 600, which provided Puerto Rico to write a local constitution, and the record of this committee, all make clear that the status of Puerto Rico remains under the Territorial Clause since 1898.

It is for this reason that, as we begin our debate on Puerto Rico’s future, we do not forget the obvious – that Puerto Rico is a territory of the United States. What does this mean? Practically, it means that our Federal laws are applicable in Puerto Rico, yet the U.S. citizens of Puerto Rico do not have adequate or proportionate representation to decide those laws. And [as] a government based on representative democracy, clarifying this situation is an absolute necessity.

Resident Commissioner Carlos A Romero-Barcelo (D-PR), Statement before the House Natural Resources Committee, October 4, 2000, pp. 2-3. This year has brought forth many feelings and emotions related to more than 100 years of territorial status. . . . Vieques could never have happened if the U.S. citizens of Puerto Rico were not disenfranchised under our present territorial status, which we euphemistically call “Commonwealth.”

Rep. Don Young (R-AK), House Floor Debate on H.R. 856, United States Puerto Rico Political Status Act, March 4, 1998, pp. H772-73. [O]ver 100 years ago, this Congress was passionately discussing the 400-year-old colonial grip that Spain had on the islands adjacent to and south of Florida. Just over 2 weeks earlier, on February 15, 266 American servicemen lost their lives in Havana harbor with the explosion of the United States warship, the Maine.

The monument to these gallant men stands highest above all else in Arlington National Monument. Many others lost their lives in the ensuing Spanish-American War amid the cries of `Remember the Maine.’ But why?

This Congress declared war and sent Americans in harm’s way in the defense of the sacred ideal: self-determination. America won the war, and assumed sovereignty over Cuba, Puerto Rico, and some of Spain’s Pacific possessions. All but one are no longer territories. Only Puerto Rico still stands, after 100 years, a territory.

By 1952, Congress conditionally approved a draft constitution submitted by the legislature of Puerto Rico. After those changes were made by Puerto Rico, the new constitutional government of the territory became effective under the name declared by the constitutional convention as the Commonwealth of Puerto Rico.

The establishment of local constitutional self-government did not alter Congress’ constitutional responsibility under the Territorial Clause for Puerto Rico.

Rep. Patrick Kennedy (D-RI), House Floor Debate on H.R. 856, United States Puerto Rico Political Status Act, March 4, 1998, pp. H779, H832. Puerto Ricans cannot decide this bill. The gentleman from Puerto Rico (Mr. Romero-Barceló) has no vote. He represents 3.8 million United States citizens. This is a bill that affects them, and they have no vote. What is that, other than colonialism?

Whenever a bill comes up that relates to Puerto Rico, it is referred to the committee on Resources. Why? Because the Committee on Resources has jurisdiction over Indian and insular affairs, meaning territories. Meaning no matter what we may say about the Supreme Court decisions, no matter what we may say about U.N. resolutions, the proof is in the pudding. We are sitting here debating this. We would not be debating this if there was a bilateral pact. If Puerto Rico really had the say in this matter, they would have said, “Hey, U.S. Congress, we don’t need you to give us the right to vote. We have the right to vote.” Puerto Rico could not do that because they are under the Territorial Clause of the United States Constitution, like it or not.

Rep. Peter Deutsch (D-FL), House Floor Debate on H.R. 856, United States Puerto Rico Political Status Act, March 4, 1998, page H783. For too long Puerto Rico has been diverted from the historical process of decolonization. Because local self-government was established under P.L. 81-600 in 1952, Congress has pretended that Puerto Rico could be administered permanently as a territory with internal constitutional self-government. However, the local constitution did not create a separate nation as the pro-commonwealth party in Puerto Rico argues. Puerto Rican born Americans are still disenfranchised in the federal political system which is supreme in the territory as long as the U.S. flag flies over the island.

Puerto Rico is not a “free associated state” in the U.S. constitutional sense or under international law as recognized by the United States. Puerto Rico remains a colony. That is not my choice of words, that is the term used by the McKinley Administration to describe Puerto Rico. It is also the term used by the former chief justice of the Puerto Rico Supreme Court who was one of the architects of the commonwealth constitution.

The United States-Puerto-Rico Political Status Act (H.R. 856), as passed by the House of Representatives on March 4, 1998. Findings: (4) The Commonwealth remains an unincorporated territory . . . . (7) The ruling of the United States Supreme Court in the 1980 case Harris v. Rosario (446 U.S. 651) confirmed that Congress continues to exercise authority over Puerto Rico pursuant to the Territorial Clause found at Article IV, section 3, clause 2 of the United States Constitution; and in the 1982 case of Rodriquez v. Popular Democratic Party (457 U.S. 1), the Court confirmed that the Congress delegated powers of administration to the Commonwealth of Puerto Rico sufficient for it to function “like a State” and as “an autonomous political entity” in respect of internal affairs and administration, “sovereign over matters not ruled by the Constitution” of the Untied States. These rulings constitute judicial interpretation of Puerto Rico’s status which is in accordance with the clear intent of Congress that establishment of local constitutional government in 1952 did not alter Puerto Rico’s fundamental status.

Committee on Resources Report on the United States-Puerto Rico Political Status Act (H.R. 856), June 12, 1997, Report Number 105-131, Part 1, pp. 9, 13 and 23. Consistent with the powers of Congress conferred by article IV, Section 3, clause 2 of the U.S. constitution (the Territorial Clause), as well as long-established U.S. constitutional practice with respect to administration of territories which come under U.S. sovereignty but are not yet incorporated into the Union, Article IX of the Treaty of Paris provided that the “civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.”

Based upon the present status of Puerto Rico under Public Law 81-600, the Federal courts have ruled that for purposes of U.S. law this arrangement for local territorial government has not changed Puerto Rico’s status as an unincorporated territory subject to the plenary authority of Congress under the Territorial Clause[.]

[T]he ballot definition of the current status in the 1993 political status plebiscite did not inform the voter – or even acknowledge – that at present Puerto Rico is a U.S. territory, or that the “commonwealth” structure for local constitutional self-government is subject to the supremacy of Federal law as applied to Puerto Rico by Congress in the exercise of its powers under the Constitution.

Representatives Robert Torricelli (D-NJ), Lee Hamilton (D-NY), Bill Richardson (D-NM) and Dale Kildee (D-MI) ) letter to Senator Charlie Rodriquez, Majority Leader, Puerto Rico Senate, June 28, 1996. We believe that the definition of Commonwealth on the 1993 plebiscite ballot was difficult given Constitutional, and current fiscal and political limitations. Through numerous Supreme Court and other Federal Court decisions, it is clear that Puerto Rico remains an unincorporated territory and is subject to the authority of Congress under the territorial clause.

Letter from Chairmen Don Young (R-AK, Resources Committee), Elton Gallegly (R-CA, Native American and Insular Affairs Subcommittee), Ben Gilman (R-NY, International Relations Committee), and Dan Burton (R-IN, Western Hemisphere Subcommittee) to The Honorable Roberto Rexach-Benitez, President of the Puerto Rican Senate and The Honorable Zaida Hernandez-Torres, Speaker of the Puerto Rican House, February 29, 1996. Although there is a history of confusion and ambiguity on the part of some in the U.S. and Puerto Rico regarding the legal and political nature of the current “commonwealth” local government structure and territorial status, it is incontrovertible that Puerto Rico’s present status is that of an unincorporated territory subject in all respects to the authority of the United States Congress under the Territorial Clause of the U.S. Constitution. As such, the current status does not provide guaranteed permanent union or guaranteed citizenship to the inhabitants of the territory of Puerto Rico, nor does the current status provide the basis for recognition of a separate Puerto Rican sovereignty or a binding government-to-government status pact.

House Committee on Public Lands Report on Public Law 81-600, Providing for the Organization of a Constitutional Government by the People of Puerto Rico, Report No. 2275, June 19, 1950, pp. 3-4. It is important that the nature and general scope of S. 3336 be made absolutely clear. The bill under consideration would not change Puerto Rico’s fundamental political, social, and economic relations to the United States.

Puerto Rico is “unincorporated Territory.” The Constitution has never been extended to Puerto Rico.

In conclusion, it is the feeling of this committee that the people of Puerto Rico have demonstrated by their intelligent administration of local governmental activities, by their extensive use of the franchise, and by their high degree of political consciousness, that they are eminently qualified to assume greater responsibility of local self-government.

Senate Committee on Interior and Insular Affairs Report on Public Law 81-600, Providing for the Organization of a Constitutional Government by the People of Puerto Rico, Report No. 1779, June 6, 1950. This measure is designed to complete the full measure of local self-government in the island by enabling the 2¼ million American citizens there to express their will and to create their own territorial government. . . .The measure would not change Puerto Rico’s fundamental political, social, and economic relations to the United States.

“Understanding Free Association as a Form of Separate Sovereignty and Political Independence in the Case of the Decolonization of Puerto Rico,” Ambassador Fred M. Zeder, President Ford’s Director of Territorial Affairs and President Reagan’s Personal Representative for Micronesian Status Negotiations and Chief Negotiator of the Historic Compact of Free Association, as presented by Rep. Peter Deutsch (D-FL) on the House Floor, during debate of H.R. 856, March 4, 1998, page H783.For purposes of international law including the relevant U.N. resolutions international conventions to which the U.S. is a party, the current status of Puerto Rico is best described as substantial but incomplete integration. This means that the decolonization process that commenced in 1952 has not been fulfilled.

As a matter of U.S. domestic constitutional law, a territory within the U.S. sovereignty which has internal constitutional self-government but is not fully integrated into the national system of political union on the basis of equality remains an unincorporated territory, and can be referred to as a “commonwealth.”

In 1958, Puerto Rico’s Legislative Assembly requested changes to the Federal Relations Act, but they were not enacted. In 1959, three bills requesting changes in the political status of the Territory were submitted to the United States Congress, but no action was taken on any of them.

Prior to the submission of the official request (to the U.N. in 1953 to make Puerto Rico a “Commonwealth” in compliance with its “Commonwealth” constitution), the United States representative to the U.N. indicated orally that mutual consent would be needed to make changes in the relationship between Puerto Rico and the United States. That statement notwithstanding, the Department of Justice concluded in 1959 that Puerto Rico remained a territory and fully subject to the territorial clause of the United States Constitution.

Legal Scholars

Thomas C. Goldstein, Lecturer on Supreme Court Litigation, Harvard and Stanford Law Schools, and Partner, Akin Gump Strauss Hauer & Feld, Testimony before the House Subcommittee on Insular Affairs, March 22, 2007, p. 2. [T]he adoption of the 1952 local territorial constitution simply created a system of limited local government and did not establish a constitutionally defined political status. . . . Congress now presides over Puerto Rico as an annexed but unincorporated territory populated by four million disenfranchised U.S. citizens who possess, essentially, the same constitutional status as aliens under the original Insular Cases doctrine. [C]ertain “fundamental rights” have been extended on an ad hoc basis by statutory policy and court decisions, but not by direct application of the Constitution. This reality – over one hundred years after the annexation of Puerto Rico and approximately nine decades after U.S. citizenship was conferred on the residents of Puerto Rico – is, arguably, a byproduct of legislative inaction and would concern the Framers, just as it concerns, among others, the sponsors of HR 900 and HR 1230, and members of the Subcommittee.

Walter E. Dellinger, Professor of Constitutional Law, Duke University; House Natural Resources Committee Hearing, October 4, 2000. Congress has plenary authority under the Constitution to govern the territories of the United States and that is the basis upon which Puerto Rico is presently governed under a statutory framework. . . . As long as the area of Puerto Rico is neither a State nor an independent nation, then Congress has plenary authority to legislate as it will[.]

The Federal government has professed a policy of ‘self-determination’ for decades. But Congress has unintentionally enabled a minority in Puerto Rico to confuse and frustrate a local decision among Puerto Rico’s status options. Congress has let this happen by not acting clearly and as a whole on the questions of Federal law and policy that are the primary issues raised by the alternative to statehood, nationhood, and territory status for which a minority still hopes.

The plebiscite and some presidential and congressional actions since have made important strides towards resolution of the issue – but the Obama Administration and the congress need to do more in the interests of the nation as well as of the territory.

After the [Puerto Rican] constitution was adopted, officials who controlled Puerto Rico’s government from the politica party that did not want true nationhood or statehood told Puerto Ricans that a new status had been established. Federal officials did not agree that Puerto Rico was no longer a territory or no longer subject to congress’ territory governing power, but they did not publicly contradict and, sometimes, contributed to the misimpression to counter foreign “Cold War” criticism of U.S. colonialism.

Territory status, whether called “Commonwealth” or not, cannot resolve the status issue because it cannot provide for equal voting representation in the Federal government.

Jose F. Aponte-Hernandez, Speaker of the House of Representatives of Puerto Rico, Testimony before the House Subcommittee on Insular Affairs, April 25, 2007, p. 5. The United States is the only sovereign in Puerto Rico. In accordance with Article IV, Section 3, Clause 2 of the United States Constitution “[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or the Property belonging to the United States.” That is why the people of Puerto Rico come before you time after time…because primary constitutional authority rests exclusively in the Congress.

Luis E. Gonzalez Vales, Official Historian of Puerto Rico, Testimony before the House Subcommittee on Insular Affairs, March 22, 2007. I am speaking as the Official Historian, a position created by the Legislature in 1903, with tenure for life and not subject to recall by any party. I am not advocating any status or side.

Puerto Rico is an unincorporated territory of the United States. “Commonwealth” is a word in the formal name of its local government adopted with the adoption of the territorial constitution; it is not now a status in the sense that territory, State of the United States, and nation are statuses.

Puerto Rico’s representatives in the U.S. legislative process that authorized and approved the local constitution, Governor Munoz and Resident Commissioner Fernos, agreed with the U.S. representatives of both houses of Congress – including this subcommittee’s predecessor – and the President’s administration that federal powers regarding the territory were not being relinquished. That Puerto Rico remains subject to U.S. government powers under the Territory Clause has been the conclusion of the Supreme Court, the Justice and State Departments, successive Presidents, the Congress, Government Accountability Office and Library of the Congress, the House of Representatives, and the Senate committee.

Ruben Berrios Martinez, President of the Puerto Rican Independence Party, Testimony before the United States Senate Committee on Energy and Natural Resources, November 15, 2006. In the United States, the White House report under consideration recognizes what the Puerto Rican Independence Party has been saying for more than half a century, that juridically Puerto Rico is nothing but a United States territory under the U.S. Constitution. . . . Democracy cannot exist when the basic laws of a country or territory are determined by another country. The democratic colony is a contradiction in terms.

Angel E. Rotger-Sabat, Attorney General of Puerto Rico, Testimony before the House Natural Resources Committee, October 4, 2000, pp. 40-42. These limited actions by Congress [e.g. granting Puerto Ricans U.S. citizenship and authorizing residents to elect a governor] did not alter the constitutional status of Puerto Rico, which was then defined by the United States Supreme Court in the so-called insular cases as that of an unincorporated territory of the United States. Puerto Rico’s limited powers of local self-government existed as a matter of Congressional grace, not constitutional right. Congress’s power thus remained plenary under the Territorial Clause.

It is worth noting that the legislative history of Public Law 600 [enacting the Commonwealth Constitution] leaves no doubt that even though its passage allowed the grant of internal self-government to Puerto Rico, no change was intended in Puerto Rico’s territorial status and Congress continued plenary power over Puerto Rico.

During hearings prior to the enactment of Public Law 600, Mr. Antonio Fernos Insern, then Puerto Rico’s Resident Commissioner before Congress, testified that the bill, and I quote, “would not change the status of the island of Puerto Rico relative to the United States. It would not alter the powers of sovereignty over Puerto Rico under the terms of the Treaty of Paris.” He and Mr. Luis Munoz Marin, then Governor of Puerto Rico, expressed their understanding that Congress unilaterally would retain authority to revoke or modify Puerto Rico’s constitution. The then-Secretary of the Interior, the then-Chief Justice of the Supreme Court of Puerto Rico, the Senate report accompanying the Senate version of Public Law 600, and the Senators who sponsored it, Senators O’Mahoney and Butler, all explicitly stated that the new bill would not affect the underlying political, social, and economic relationship between Puerto Rico and the United States.

Congress has never strayed from holding the same view as it having the final authority to define the juridical status of Puerto Rico. The Federal courts have also recognized Congress’s plenary power over Puerto Rico under the Territorial Clause.

Do we currently exercise sovereignty in Puerto Rico? A careful perusal of the Congressional Record of Senate Bill 3336 of the 81st Congress would suffice to answer this question in the negative. Every single congressional committee which reported on that bill and its House equivalent reproduced Secretary of the Interior Oscar J. Chapman’s statement to the effect that the approval of what later became Public Law 600 would not change Puerto Rico’s political status or U.S. sovereignty as acquired over Puerto Rico under the Treaty of Paris.

Thus, absolutely no measure of sovereignty has ever been transferred by Congress to the people of Puerto Rico. This is evidenced by the undeniable fact that the intricate web of Federal regulations, congressional legislation and decisions by the Federal judiciary apply to Puerto Rico, without Puerto Ricans having any say in the selection of the officers who spin the web.

Governor Pedro Rosselló (D-PR), Statement before the House Resources Committee, March 19, 1997, p. 48. If you go to the United Nations and you say that you have a jurisdiction which does not participate and does not elect representatives that have a major decisional power over the inhabitants of that jurisdiction, they will tell you that that is a colony. And that is the real situation in Puerto Rico today.

Ruben Berrios-Martinez, President of the Puerto Rico Independence Party, Statement before the House Resources Committee, March 19, 1997, pp. 57-58. I don’t know why commonwealth should be described as nothing else or nothing more than what it is, an unincorporated territory. . . . If you want to describe commonwealth, describe it as an unincorporated territory and period.

Luis Ferré, President of the New Progressive Party, Statement before the House Resources Committee, March 19, 1997, pp. 82-83. In 1950 Congress authorized the people of Puerto Rico to vote in referendum to accept or reject Law 600, which provided for the adoption of the local constitution[.] The Federal Relations Act remained unchanged, maintaining Puerto Rico as a non-incorporated territory under the Territorial Clause of the United States Constitution and the full sovereignty of Congress.

There was no amendment to the territorial clause. And I am talking now from experience. I was a member of that constitutional assembly. And at that constitutional assembly, which considered Law 600, we looked into the matter of the way Law 600 was approved by Congress. And in all the years in this Congress where the law was discussed, it was always clearly stated that Puerto Rico was not being removed from the territorial clause of the United States.

And the Former Governor of Puerto Rico, Luis Muñoz Marin, said many times at these Committee hearings if Puerto Rico goes crazy and does something that is not quite in accordance with what we have agreed, you can – Congress can immediately repeal every thought of power it has given Puerto Rico. And that is why there was nothing passed.

In order to get the law approved in Congress, the lawyers of the Department of Interior had to work out a solution that was acceptable to Congress. Congress would not accept the compact, but they did accept something in the nature of a compact. And in the nature of a compact is not a compact. It is something similar to a compact, but not – doesn’t have the binding quality of a compact.

Resolution from the Puerto Rican Constitutional Assembly

Resolution 22, Approved by the Constitutional Convention of Puerto Rico in the Plenary Session held on February 4, 1952, as found in testimony presented to the House Committee on Resources in its field hearing on H.R. 856, United States-Puerto Rico Political Status Act, April 21, 1997. Whereas, the word “commonwealth” in contemporary English usage means a politically organized community, that is to say, a state (using the word in the generic sense) in which political power resides ultimately in the people, hence a free state, but one which is at the same time linked to a broader political system in a federal or other type of association and therefore does not have independent and separate existence;

Whereas, the single word “commonwealth,” as currently used, clearly defines the status of the body politic created under the terms of the compact existing between the people of Puerto Rico and the United States, i.e., that of a state which is free of superior authority in the management of its own local affairs but which is linked to the United States of America and hence is a part of its political system in a manner compatible with its federal structure [.]

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Clear as a sunny day. The agreement of Paris, The USA Constitution and the Power of Congress.The Compact by two
political bodies that at present is
generating political arguments and discomfort for the new generation.
USA and Puerto Rico are BOTH RESPONSIBLE FOR THEIR DIFFERENCES.

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